1968 P Cr (PLP)

SARDAR MUHAMMAD IQBAL, J.‑The petitioners have been convicted by the Tribunal under the West Pakistan Criminal Law (Amendment) Act, 1963, and sentenced to undergo different terms of imprisonment. Without exhausting the remedies provided under the aforesaid Act to challenge the said order in appeal before the Commissioner and then in revision before the Provincial Government, habeas corpus petitions have been filed by persons other than the convicts alleging that their conviction is without lawful authority and they are, therefore, being unlaw fully detained.

2. The case of Fazal Din, Muhammad Yunas and Gul Badshah, petitioners in Writ Petition No. 322 of 1966, came up for preliminary hearing before my learned brothers, Sajjad Ahmad Jan and Faizullah Khan, JJ. and they observed that the Tribunal had based its finding on certain evidence which it recorded in the absence of the petitioners and it, therefore, acted against the principles of natural justice, but on the question whether they can grant any relief under Article 98 of the Constitution to the petitioners when the remedies available to them to agitate the same question in appeal and in revision have not been exhausted, they have referred the following questions to the Full Bench :‑ (1) Whether a petitioner can seek a relief from this Court under Article 98 of the Constitution and it is appropriate for this Court to grant him one without the petitioner having first exhausted the remedy of appeal to the Commissioner or to the Government, as the case may be, as specifically provided in section 18(1) and (2) of the Act? (2) If the answer to the first question be in the affirmative, in what circumstances can such a relief be granted?

3. Syed Masoom Shah, Mr. Peer Bakhsh Khan and Dr. A Rahim appeared on behalf of some of the petitioners and Mian Zia‑ud‑Din who addressed as amicus curiae contended that the petition was competent notwithstanding the provision of appeal in the Act. Mr. Sher Bahadur, the Additional Advocate‑General, S. Ghazanfar Ali Bokhari, Assistant Advocate‑General and Mian M. Yunas Shah (he also appeared as amicus curiae) argued that unless the petitioners had exhausted their remedies by way of appeal and revision, the petition under Article 98 was not competent.

4. Under section 3 of the West Pakistan Criminal Law (Amendment) Act, 1963, "where in the opinion of the Commissioner it is inexpedient in the interest of justice, that the question of the guilt or innocence of any person accused of a Scheduled offence or of any several persons so accused, be tried by a Court mentioned in section 6 of the Code of Criminal Procedure, 1898, or in any other law for the time being in force, by an order in writing, with reasons therefore refer the question to the decision of a Tribunal and require the Tribunal to come to a finding on the question after such enquiry as may be necessary and after hearing the accused." The reference to the Tribunal under the Act, therefore, depends on the decision of the Commissioner. The Tribunal under section 10 is to submit its finding with reasons to the District Magistrate who may remand the question to the Tribunal for a further inquiry; or acquit the accused person or persons or any of them; or may convict the accused person or persons, or any of them, of any offence specified in the First Schedule and sentence the accused to any penalty prescribed for that offence under any law, except a sentence of death or transportation or imprisonment for a term exceeding fourteen years. In case a sentence exceeds seven years, it requires confirmation by the Commissioner. The District Magistrate is required to furnish within three days of the passing of the order a copy thereof free of costs to the accused. Any person aggrieved by any decision given, sentence passed or order made, by the District Magistrate under any of the provisions of the Act, may, under subsection (1) of section 18, prefer an appeal to the Commissioner within thirty days of such decision, sentence or order, and under subsection (2) of section 18 "any party aggrieved by an order of the Commissioner referring a case to a Tribunal for decision, or confirming a sentence of imprisonment exceeding seven years, or enhancing any sentence or converting a finding of acquittal into a finding of conviction, may within sixty days of the passing of such order, appeal to Government." The Government have, under section 20, the power to call at any time the record of any case which has been decided by the Commissioner in which no appeal lies to it, and after giving the parties an opportunity of being heard, pass such order in the case, as it thinks fit. It is provided in section 22 that the "Commissioner shall not entertain or hear any appeal against any decision, sentence or order given, passed or made by himself in the capacity of District Magistrate". He, in that case, has to report the case to Government and the appeal then is to be disposed of by Government or by an officer, other than the reporting officer, appointed by the Government. Thus, the scheme of the Act provides ‑that the Commissioner makes reference to the Tribunal; the Tribunal bears the case and reports the matter to the District Magistrate, who then makes the order of remand, acquittal or conviction, as the facts of the case may warrant. In case, however, he passes an order of sentence exceeding seven years, the sentence has to be confirmed by the Commissioner. The appeal against the decision of the District Magistrate lies to tithe Commissioner except in those cases in which the sentence needs confirmation by the Commissioner in which case the appeal lies to the Government. In certain cases, there is a second appeal provided to the Government against the order of the Commissioner. The Government otherwise has the power of revision against the order of the Commissioner. It is thus clear that there is an alternative remedy provided against certain orders passed under the Act. It is in the light of these provisions that it is to be examined whether a petition under Article 98 of the Constitution lies direct to the High Court without resorting to the remedy of appeal provided in section 18 or invoking the revisional jurisdiction of the Government under section 19.

5. It may be stated at the very outset that the validity of sections 18 and 19 of the Act providing for appeal and revision has not been challenged before us.

6. It was contended that the Commissioner before he makes a reference to the Tribunal under section 3 of the Act forms his opinion as to the guilt of the accused, and, therefore, renders himself disqualified to hear the appeal subsequently. The precise contention was that if the Commissioner hears the appeal in a case in which he has made the reference, his decision vitiates on the doctrine of bias which is based on the principles of natural justice that no one should be a Judge in his own cause. Reliance was placed on Ghulam Rasul and others v. The Crown (P L D 1951 F C 62), where a Legal Remembrancer advised the Provincial Government to file an appeal against an order of acquittal in a murder case in his capacity as a public officer and subsequently, on becoming a Judge of the High Court, was a member of the Division Bench which heard and decided the appeal. The Federal Court held that an officer who had considered the evidence in the case and formed an opinion on the question whether an appeal should be filed, is disqualified from hearing the case as a Judge, and it is highly undesirable that such an officer should act judicially in a case in which, after extra judicial investigation, he had formed an opinion adverse to a party. It was further observed that nothing should be allowed to happen in a case which may give rise to a reasonable apprehension in the mind of an accused person that he would not or did not have a fair trial, and that it is essential that justice must not only be done, but must manifestly be seen to be done. The same view was taken in Ahmad v. The Crown (P L D 1951 F C 107). Reliance was also placed on Reg v. Gaisford and another ((1892) 66 L T R 24). The facts of that case were: A vestry meeting was called to discuss an alleged obstruction on the highway, and the Magistrate in question attended such meeting as a rate‑payer, and himself moved the resolution that the appellant should be called upon to remove the heap that caused such obstruction. The appellant, on his refusal to effect such removal, was summoned under the Highway Act of 1835 before the Magistrate sitting in petty sessions, and the order appealed from was made against him. Now, one of these Magistrates was the very Magistrate who had previously at the vestry meeting moved the resolution that the appellant should be compelled to remove the heap; and further, this Magistrate was a rate‑payer in the same parish as the appellant." It was held "that the Magistrate was clearly wrong in sitting on the Bench during the hearing of this summons, for he had taken such a part in the proceedings as to disqualify him for acting in his judicial capacity". It was also observed: "It is inconceivable to me that he should have in reality been Lahouring under bias; but that is not the point in this case and I think that on the facts of the case there is sufficient to show that his judgment might have been biased." The learned counsel also relied on Rahmat Elahi v. Government of West Pakistan (P L D 1965 Lah. 112), where S. Alamgir passed the detention order and he was also the member of the Review Board which considered the propriety of this order under section 3(5)(c) of the West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960). It was held that S. Alamgir as a member of the Review Board has acted as a Judge in his own cause and the "Constitution of the Review Board was, thus, improper and the report submitted by it on the basis of which the impugned orders have been made are illegal in the eye of law." The same view was taken in Muhammad Abdullah v. Road Transport Corporation (P L D 1964 Lah. 743) and in Muhammad Mohsin Siddiqi v. Government of West Pakistan (P L D 1964 S C 64). It is well settled that no one can be a Judge in his own cause and this is based on the principle nemo debet esse judex in prop; is causa. These decisions are based on the doctrine of bias which is one o the important principles of natural justice. In respect of judicial or quasi‑judicial Tribunals, it is well settled that (a) no man shall be a Judge in his own cause and (b) that justice should no only be done, but manifestly seem to be done. The same principles apply also to administrative authorities though they are not the Courts of justice but perform quasi‑judicial function inasmuch as they may have to decide the rights of others. The question, however, arises whether the principles of natural justice or the doctrine of bias apply, notwithstanding a specific statutory provision to the contrary. In other words, can the doctrine of bias be qualified by a statutory provision? In Rex v. Cheshire Licensing Justices ((1906) 1 K B 362), the facts were that the licensing justices for the borough of Hyde, which was not a county borough, but had a separate commission of the peace, held their meeting presided over by Mr. Blackwell, and referred the question of the renewal of the licence of the Grapes Inn to the quarter Sessions for the county under section 1, subsection (2) of the Licensing Act, 1904. Mr. Blackwell who had been appointed by the justices of the borough of Hyde a member of the committee of quarter sessions was present at the meeting of the committee of quarter sessions, and left the Court with the other justices when they retired to consider the question of the licence of the Grapes Inn and returned with them when their decision was given. On a contention raised that the committee was improperly constituted by reason of Mr. Blackwell being disqualified from sitting and adjudicating on the question of the renewal of the licence of the Grapes Inn, it was held: "A justice of a borough who has been appointed a member of the committee of quarter sessions under section 5, sub. section (5) of the Licensing Act, 1904, is not disqualified from acting on the question of the refusal of the renewal of licence by the fact that he presided at the meeting of the licensing justices of the borough at which it was decided to refer the question of the renewal of that licence to quarter sessions under section I, sub section (2) of the Act." In Rex v. Bath Compensation Authority ((1925) 1 K B 685), the licensing justices of a county borough referred the application for the renewal of the licence of a hotel to the compensation authority of the borough also resolved that a solicitor should be instructed to appear before the compensation authority and oppose the renewal of the licence on their behalf. The solicitor so instructed appeared before the authority and supported the opposition, and in the result the compensation authority refused the renewal subject to payment of compensation. It may be mentioned that a majority of the justices who sat on the com pensation tribunal and voted against the renewal of the licence had as members of the licensing committee been parties to the resolution referring the question of renewal to the compensation authority. The House of Lords, reversing the decision of the Court of Appeal held that the decision of the tribunal, whereon three justices who referred the matter to the said authority sat, must be set aside on the ground that no one can both be a party and a Judge in the same cause. Viscount Cave, L. C. held at page 592: "But the statute nowhere says that justices who elect to appear as opponents of the renewal and take active steps (such as instructing a solicitor) to make their opposition effective, may nevertheless act as Judges in the dispute; and in the absence of a clear provision to that effect I think that the ordinary rule, that no one can be both party and Judge in the same cause, holds good." The principle laid down by this decision is that the principles of natural justice are applicable unless it is clearly provided otherwise by a statutory provision. In Rex v Leicester Justices ((1927) 1 K B 557), the principle was made further clear and it was held that the mere fact that the licensing justice has originated an objection to the renewal of a licence does not disqualify him by reason of interest from sitting and adjudicating as a member of that authority upon the matter of that licence. In dealing with Rex v. Bath Compensation Authority's case, it was observed: "The distinction is that, in that case, Parliament had not sanctioned what was done ; in this case it has." It is thus well settled that the doctrine of bias is subject to the limits of statutory exception. It appears that the proceedings under the Contempt of Court Act are also based on the same principle, because the proceedings for Contempt of the High Court and for the contempt of Judicial Officers committed in the face of the Court constitute an exception to the general principle of natural justice that no man ought to be a judge in the cause, because the same Judge whose contempt is committed is competent to try and punish the contemner. See In re: Mali Lal Ghose Amrita Briar Patrika (A I R 1918 Cal. 988), In re : Murli Vanohar Parasad (A I R 1929 Pat. 72), in re: William Tayler (A I R 1918 Cal. 713), In re : Tashsr Kanti Ghose (A I R 1935 Cal. 419) and In re: K L. Gauba (A I R 1942 Lah. 104). In this view of the matter, no exception can be taken to the provisions of section 18 of the Act in so far as the Commissioner who initiates the proceedings is also to act as the appellate authority.

7. This question can also be examined from another angle. The function of the Commissioner in making reference under section 3 of the Act is absolutely administrative as distinguish from quasi‑judicial. He does not in any way adjudicate on t rights of the parties. His decision is only procedural in nature w because all that he orders is that an accused person shoal be tried under the Act by a Tribunal instead of an ordinary Court under the Code of Criminal Procedure. In Samundar v. Crown (P L D 1954 F C 228), it was held: "But it will be clear from the foregoing that 'since the proceedings before the Deputy Commissioner and the Commissioner were not amenable to any rule which might be regarded as a rule of 'due process' or 'best evidence', it is impossible for this Court to apply any principles whatsoever which may possess the slightest validity for judging the correctness or otherwise of their decisions." It is thus clear that the Commissioner, while acting under section 3, performs merely administrative functions and the doctrine of bias, therefore, cannot be pressed into service for the contention that he becomes disqualified to hear the appeal under section 18 of the Act. The facts in Franklin v. Minister of Town and County Planning ((1947) 2 All 9 R 289), were: Section 1 of the (Eng.) New Towns Act, 1946 provided that‑"If the Minister is satisfied, after consultation with local authorities, that it is expedient in the national interest that any area of land should be developed as a new town . . . . . he may make an order . . . . .", and that the provisions of the First Schedule should be followed in making the order. The procedure prescribed by the First Schedule was that where the Minister proposed to make an order, be should prepare a draft order, publish a notice inviting objections to the draft order ; that if any objection was made the Minister should cause a public local inquiry to be held and consider the report arising from such inquiry and then confirm the draft order or make such modifications as he might think fit. At a public meeting held before hearing the objections on the draft Stevenage New Town (Designation) Order, made under the Act, the Minister stated that he would make the order. When the final order was made, confirming the draft order, certiorari was sought to quash the order on the ground, Inter alts, that the Minister was biased in confirming his own order in the face of objections made by local citizens. Rejecting this contention, the House of Lords held that the statute did not impose any quasi‑judicial duty upon the Minister and that his function under the Act was purely administrative and that if he had complied with the statutory direction to hold a public inquiry and consider the report thereof, no question of any bias in coming to his administrative determination to make the order could arise. In short, the determination was solely a matter of policy even though a statutory procedure was prescribed in coming to the determination; the only question that the Court could entertain was whether the statutory directions had been complied with but not whether the Minister was biased in coming to his decision. Lord Thankerton observed: I could wish that the word 'bias' should be confirmed to its proper sphere. Its proper significance in my opinion is to denote a departure from the standard of even handed justice which the law requires from those who occupy judicial office or those who are commonly regarded as holding a quasi judicial office such as an arbitrator. The reason for this clearly is, that, having to adjudicate as between two or more parties he must come to his adjudication with an independent mind without any inclination or bias towards one side or other in the dispute . . . . But in the present case the respondent having no judicial duty . . . . ." The principle of the dictum of bias applies only to the persons who are performing judicial of quasi‑judicial functions and we have to exclude from its ambit the functions which are purely administrative or procedural in character. In such cases, the doctrine of bias does not apply. The contention of the learned counsel for the petitioners that the decision under section 18 of the Act will always vitiate on the doctrine of bias and that the remedy provided by way of appeal is no remedy for a suitor in the eye of law, is untenable and has no force.

8. It now follows for determination whether a person aggrieved by a proceeding under the West Pakistan Criminal Law (Amendment) Act, 1963, can invoke the jurisdiction of this Court to issue a writ when he has a remedy by way of appeal available to him. It is well settled that when an alternative and adequate remedy is available to a suitor, he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a writ. The High Court may refuse to grant a writ where there exists an alternative remedy which is equally efficient and adequate. In Tariq Transport Co., Lahore v. Sargodha‑Bhera Bus Service (P L D 1958 S C (Pak.) 437), it was laid down: "It is wrong on principle to entertain petitions for writs, except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief. Any indulgence to the contrary is calculated to create distrust in statutory tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat the legislative intent." The learned counsel for the petitioners, however, contended that the plea of alternative remedy is not a bar to the exercise of the jurisdiction but only a consideration guiding the exercise of jurisdiction by the High Court. They further contended that where the absence or excess of jurisdiction is patent and an aggrieved person invokes the jurisdiction of the High Court a peti tion under Article 98 of the Constitution is competent, and relied also on Tariq Transport Company's case, wherein it was observed by Muhammad Munir, C. J., that is case of absence or excess of jurisdiction or where the impugned order suffered from illegality, on the face of the record, a certiorari may be granted even though the right of statutory appeal has not been availed of. In S. A. Haroon v. Collector of Customs, Karachi (P L D 1959 S C (Pak.) 177), it was observed by

8. A. Rahman, J., at page i94: "In most cases, Courts would act on the general common law rule 'that certiorari will not lie when there is another adequate remedy by appeal, writ of error or otherwise, where an inferior‑Court has jurisdiction (Ferris on Extraordinary Legal Remedies, page 185). But in a proper case where the question of jurisdiction is raised, the extraordinary jurisdiction of the High Court may be successfully invoked by way of certiorari." In Muhammad Amir Khan v. Controller of Estate Duty (P L D 1961 S C 119), Kaikaus, J. observed : "An appeal had been filed during the pendency of the writ petition, but that could not stand in the way of the exercise of writ jurisdiction by the High Court, in fact, in cases where an order is challenged as wholly without jurisdiction a petition for a writ appears to be amore appropriate remedy." In Nagina Silk Mill v. Income‑tax Officer (PLD 1963 SC 322), S. A. Rahman, J., observed: "In cases of absence or excess of juris diction or where the impugned order suffers from illegality on the face of the record, a certiorari may be granted even though the right of statutory appeal had not been availed of." All these authorities relate to a period prior to the enforcement of the Constitution in 1962. The High Courts ordinarily did no; issue the writs if there was another remedy available to the suitor and the decisions prior to the present Constitution cannot be pressed into service in interpreting Article 98 because the Courts then adopted the principle of alternative, remedy only as a rule of policy, prudence, convenience and discretion, rather than a rule of law. Under the Constitution the jurisdiction of the High Court under Article 98 cannot be invoked if there exists another adequate remedy. It is provided in Article 98 of the Constitution that "a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law‑(a) on the application of any aggrieved party, make an order‑(i) directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted bylaw to do, or to do that which he is required by law to do; or (ii) declaring that any act done or proceeding taken in the Province by a person performing functions in connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect . . . . : Thus, if an adequate remedy is available to a suitor, he cannot invoke the jurisdiction of the High Court under Article

98. However, the existence of an alternative remedy is not per se a bar to the issuance of an order under Article

98. If a remedy is available, but it is not adequate, it will not be a bar for invoking the jurisdiction under the said Article. The question whether or no a particular remedy is adequate remedy, will always depend on the facts of each case. In Mehboob Ali Malik v. Province of West Pakistan (P L D 1963 Lah. 575), the scope and extent of Article 98 with specific reference to the "other adequate remedy" was examined by Manzur Qadir, C. J. and he observed : "In the words of an eminent author 'there would be something in the nature of the act or proceeding that makes it apparent to the superior Court that it will not be able to protect the rights of the litigants or afford them adequate redress otherwise than through the exercise of the extraordinary jurisdiction." He also observed : "The correct position therefore, seems to be‑the adequacy of an alternative remedy is to be judged in relation to the requisite relief. (i) If the relief available through the alternative remedy, in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an 'other adequate remedy' within the meaning of Article 98. (ii) If the relief available through the alternative remedy, in its nature and extent, is what is necessary to give the requisite relief, the 'adequacy' of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense or convenience of obtaining it tinder Article 98". The Full Bench also laid down the steps to determine whether a suitor has an alternative adequate remedy and those steps are: "(a) Formulate the grievance in the given case, as a generalised category ; (b) Formulate the relief that is necessary to redress that category of grievance ; (c) See if the law has prescribed any remedy that can redress that category or grievance in that way and to the required extent; (d) If such a remedy is prescribed, the law contemplates that resort must be had to that remedy ; (e) If it appears that the machinery established for the purposes of that remedy is not functioning properly, the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that that machinery begins to function as it should, It would not be correct to take over the function of that machinery. If the function of another organ is taken over, that other organ will atrophy, and the organ that takes over, will break down under the strain ; (f) If there is no other remedy that can redress that category of grievance in that way and to the required extent, or if there is such a remedy but conditions attached to it which for a particular category of cases, would neutralise or defeat it so as to deprive it of its substance, the Court should give the requisite relief under Article 98; and (g) If there is such other remedy, but there is something so special in the circumstances of a given case that the other remedy while generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Courts should give the required relief under Article 98". The decision given by the Full Bench in Mahboob Ali Malik's case and the basis laid down for determining whether the alternative remedy is or is not adequate one, have to be followed whenever a question comes up before the Court whether an alternative remedy by way of an appeal under section 18 of the West Pakistan Criminal Law (Amendment) Act, 1963, can operate as a bar for entertaining a petition under Article 98 of the Constitution. In Nuruzzaman Choudhury v. Secretary, Educational Department (P L D 1966 Dacca 187), the contention raised on behalf of the respondents that an application under Article 98 was not competent against the order of removal of Mutawalli for the reason that an appeal was provided against that order before the District Judge, was repelled and it was held that as the remedy of appeal was conditioned by the fact that the appellant had to make over charge of the Waqf to the new Mutawalli before filing the appeal, it was not an adequate remedy. It was observed: "It is certainly more inconvenient than the remedy provided in Article 98 and in that view of the matter at least it is not an adequate remedy." Recently, the Supreme Court in Ali Abbas v. Yishan Singh (P L D 1967 S C 294), has held that in the case of an excess of jurisdiction, a litigant can invoke the jurisdiction under Article 98 without resorting to other remedies. Cornelius, C. J., in dealing with this question observed: "There is a perversion of procedure apparent on the face of the record, and it is in our view idle to suggest that against such a denial of rights, the proper remedy for the appellant to adopt was to move the Custodian for review or revision. There had been in the relevant respect, an excess of jurisdiction, and the affected party could not be penalised for not throwing themselves again on the mercy of the authorities who were responsible for such excess. The proper and indeed the only authority which possessed power to correct the legal wrong thus done was the High Court acting in its jurisdiction under Article 98 of the Constitution." Under Article 63 of the Constitution, "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan." It is thus a law declared by the Supreme Court that in cases of excess of jurisdiction, a petition under Article 98 lies notwithstanding the existence of the right of .an appeal against the impugned order.

9. The petition, in our opinion, would also be competent without exhausting the remedy of appeal in a case where there is an absence of jurisdiction. In regard to the absence of initial lack of jurisdiction, the position admits of no doubt, because to any such case the order of a tribunal is a nullity and has no existence in the eye of law. The distinction between the excess of jurisdiction and the absence of jurisdiction is explained by the House of Lords in Baldwin and Francis v. Patents Tribunals ((1959) 2 All E R 443), thus: "No tribunal, it is said, has any jurisdiction to be influenced by extraneous considerations or to disregard vital matters

But an excess of jurisdiction in this sense is very different from want of jurisdiction altogether which is, of course determinable on the commencement, not at the conclusion, of the inquiry' (see R. v. Bolton ((1841) 1 Q B 66 at p. 74)), whereas an excess of jurisdiction is determinable in the course of or at the end of the inquiry." An absence of jurisdiction may occur when the authority has not been constituted as required by the statute or the person proceeded against is not subject to the jurisdiction of that authority or the ground on which the action is taken was no within the grounds stated by the statute or the order made such as could not have been made under the statute (see Muhammad Ayub Khuhro v. Pakistan (P L D 1960 S C 237)). In Colonial Bank of Australasia v. William ((1874) L R 5 P C 417), it was held by the Judicial Committee that the right or power of the tribunal to determine a matter depends on the character or the Constitution of the tribunal, or upon the nature and the subject‑matter of the inquiry or upon certain proceedings preliminary to the inquiry. Lord Halsbury in Farquharson v. Morgan ((1894) 1 Q B 522 at p. 556) observed: "it has been long settled that, where an objec tion to the jurisdiction of an inferior Court appears on the face of the proceedings it is immaterial by what means and by whom the Court is informed of such objection. The Court must protect the prerogative of the Crown and the due course of the administration of justice by prohibiting the inferior Court from proceeding in matters as to which it is apparent that it has no jurisdiction. The objection to the jurisdiction does not in such a case depend on some matter of fact as to which the inferior Court may have been deceived or misled, or which it may have unconsciously neglected to observe, and the Judge of such Court, therefore, must or ought to have known that he was acting beyond his jurisdiction. I find no authority justifying the withholding of a writ of prohibition in such a case." In R. v. Comptroller‑General of Patents ((1953) 1 All E R 862) Lord Goddard, C. J., held that it did 'not follow that b.‑cause there was a right of appeal under section 44 (1) of the Patents Act, 1949, from a tribunal before which an objection to jurisdiction was taken, the power of the Divisional Court to issue an order of prohibition was taken away. In Halsbury's Laws of England, Third Edn., Vol. II, it i9 stated in para. 214: Where the defect of jurisdiction is apparent on the face of the proceedings and the application is made by a party, the order goes as of right and is not a matter of discretion . . . . . The order, however, cannot be claimed as of right unless the defect of jurisdiction is clear." In Ghulam Haider v. Mst. Bhago and others (P L D 1962 Lah. 326), it was held that orders passed in the absence of jurisdiction are not binding; in the eye of law, an order passed without jurisdiction does not exist at all and can be ignored by anyone who chooses to treat it as a waste paper, which it is. In Hafeezud Din v. Khadlm Hussain (P L D 1965 Lah, 439), it was held: "There can be no doubt that an order without jurisdiction is no order at all in the eye of law and is not worth the paper on which it is written." The decision of a tribunal or a Court is contravention of the statutory requirements is in excess of jurisdiction. It will also be in excess of jurisdiction where a tribunal or an authority while acting in the exercise of its jurisdiction violates the principles of natural justice or bases its decision on extraneous considerations. In the cases of absence or excess of jurisdiction an alternative remedy is not considered an adequate remedy for the reasons that it is necessary to give a quick relief in such case in respect of the orders which are a nullity and, therefore, non est. The cases of excess or absence of jurisdiction are distinguishable from the cases where there is irregular or erroneous exercise of jurisdiction. It is stated by Hawes on Jurisdiction: "In the former case (defect of jurisdiction), the whole proceeding is corum non judice and void; in the latter, the proceeding cannot be impugned in a collateral action, even though it be erroneous upon its face and even though it relates to a fact which in a former stage of the proceeding might have been essential to confer jurisdiction. It is examinable only on a direct proceeding as by an appeal or by a proceeding in the nature of an appeal, and where there is no remedy of that kind, it concludes for ever." At page 440 of the Law of Extraordinary Legal Remedies by Ferris (1926 Edition), it is stated: "Whatever power is conferred maybe exercised, and, if it be exercised injudiciously, erroneously or irregularly, it amounts to error merely and not to a usurpation or excess of jurisdiction. In such a case, however, gross the error, irregularity or mistakes, the writ (of certiorari) does not lie . . . ." Thus, if a tribunal acts without or in excess of jurisdiction, its decision is a nullity. If, however, the tribunal has the jurisdiction and in the exercise of the jurisdiction makes a erroneous decision, it cannot be ignored in any collateral proceedings and unless it is set aside in appeal, it remain binding. It is, therefore, for the person who invokes the jurisdiction of the Court under Article 98 of the Constitution to satisfy it that the tribunal has acted in the absence of or in excess of jurisdiction.

10. It was also argued that in case of habeas corpus, a petition under Article 98 of the Constitution, can be made by any person. The detenu having been proceeded against under the West Pakistan Criminal Law (Amendment) Act, 1963, may have a remedy by way of an appeal under section 18, but the same is not the remedy available to the petitioner in a habeas corpus petition and that being so, section 18 is no bar. At page 34 of the Law of Extraordinary Legal Remedies by Ferris (1926 Edition), it is observed: "So, ordinarily, habeas corpus will not lie where there is another adequate remedy, by appeal, writ of error, mandamus, motion or otherwise". It was further observed : "But where constitutional rights cannot be otherwise adequately preserved, as where there was no other speedy and efficacious remedy open to petitioner in the usual and orderly course of criminal procedure, and there could be no inquiry whether the charge constituted an offence against a statute until the meeting of a grand jury, and no relief from imprisonment meantime except through the writ of habeas corpus, or by furnishing bail, circumstances are presented which call for summary inquiry and habeas corpus is proper." A habeas corpus petition although it may be filed by a person other than a detenu is in fact one seeking remedy for the detenu and that being so if the detenu has an adequate remedy to challenge the orders under which he is detained, the petition under Article 98 will not lie except in very exceptional circumstances.

11. Our answer to the question is that the Court in each case is to act in its discretion and by keeping into consideration the principles laid down in Mahboob Ali Malik v. Province of West Pakistan, has to decide whether the appeal under section 18 of the Act would be an adequate remedy. In cases of absence of jurisdiction, or the excess of jurisdiction, section 18 shall not be a bar. Again, where a general question of some public importance has been raised and is likely to arise in other cases, the Court may also entertain the petitions. Similarly, in cases where the order is challenged on the ground that the provision under which the order is made was no valid, or was ultra vires, or that the order does not fall with the section under which it purports to have been made, or that the petitioner questions the very authority and the jurisdiction of the person to make the order, the petitioner cannot be limited to the remedy available to him against any decision made or order passed under the Act. There is, however, no rigid rule that in every case in which such questions may arise, the Court should entertain the petition under Article

98. It is not possible to lay down any hard and fast rule that the discretion is to be exercised in such and such circumstances only. The basic principle, however, to be kept in view by the Court should be that the power under Article 98. where the alternative remedy is not exhausted, is exercised sparingly, with caution and, circumspection ; and ordinarily only in those cases where grave injustice may otherwise ensue. Reference answered.